"R.D" v. Shohola Camp Ground and Resort

Filing 91

MEMORANDUM ORDER re: 70 MOTION to Compel Plaintiff to Produce the Entire Video of E.J. filed by Shohola Camp Ground and Resort. The defendants motion to compel disclosure of the interview of E.J. is GRANTED, in part, and DENIED, in part. SEE ORDER FOR COMPLETE DETAILS. Signed by Magistrate Judge Martin C. Carlson on March 30, 2017. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
R.D.,

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Plaintiff
v.
SHOHOLA CAMP GROUND
AND RESORT,
Defendant

Civil No. 3:16-CV-1056
(Judge Munley)

(Magistrate Judge Carlson)

MEMORANDUM ORDER
I.

Factual Background

This case involves allegations of battery, negligence and negligent hiring
and supervision in connection with an episode of alleged sexual abuse which
occurred in 2007 when the then-minor plaintiff, R.D., was participating in a
camping excursion conducted by the defendant. In the course of this excursion it is
alleged that another camper, identified as N.S., sexually assaulted the plaintiff, and
may have had inappropriate sexual contact with two other minors who shared a
tent with the plaintiff and N.S. during this excursion. These two other minors are
identified in these proceedings as G.M. and E.J.

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On March 7, 2017, this matter was referred to the undersigned for pretrial
management and resolution of discovery disputes.

Since that time we have

addressed, and are in the process of addressing, numerous discovery disputes
between these parties. One of these discovery issues relates to a dispute regarding
whether, and to what extent, the plaintiff’s counsel may have waived the workproduct privilege with respect to an investigative interview which the plaintiff’s
private investigator conducted with E.J. on February 24, 2017.
These waiver issues arose in the course of a deposition of G.M. which was
conducted on March 7, 2017. (In camera submission, Ex. E.) In the course of this
deposition, G.M. testified about this 2007 camping excursion, and categorically
denied any knowledge of any sexual contact between N.S., R.D., or any other
camper in the tent. (Id.) G.M. also denied recalling that anyone else was in the
tent besides himself, R.D., and N.S. (Id.) In the course of cross examining G.M.,
the plaintiff’s counsel played an excerpt from a videotaped interview which the
plaintiff’s private investigator had conducted with another camper, E.J., on
February 24, 2017. In this videotape interview excerpt, E.J. identifies himself as
the fourth occupant of the tent during this 2007 excursion, along with N.S., R.D.,
and G.M. E.J. also described sexual activity which took place in the tent during
this excursion. Specifically, E.J. describes a game of Truth or Dare which was
initiated by N.S., and culminated in an act of anal intercourse between N.S. and
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E.J.

(Id.)

The plaintiff’s counsel then used this selective disclosure of the

investigative interview to question G.M. at some length regarding the
completeness and accuracy of his recollection of these events. (Id.)
In the wake of this deposition, the defendant has moved for the disclosure of
the entirety of the videotaped investigative interview of E.J. (Doc. 70.) While
acknowledging that such investigative interviews are typically covered by the work
product privilege, the defendant argues that plaintiff counsel’s use of excerpts of
the interview during the deposition of G.M. now constitutes a waiver of the
privilege, justifying wholesale disclosure of the interview in its totality. R.D.’s
counsel opposes this request, contending that the disclosure of some portion of an
interview encompassed by the work product privilege does not amount to a waiver
of the privilege as to the entire interview.
At the court’s direction, the plaintiff has provided for our in camera
inspection:

(1) the excerpts of the videotape interview played at G.M.’s

deposition; (2) the entirety of the interview; (3) some investigative notes from the
interview; (4) and the deposition of G.M., in video and transcript form. We have
reviewed these materials in camera, weighing questions of work product privilege
waiver in light of the guiding legal principles announced in In re Teleglobe
Commc'ns Corp., 493 F.3d 345, 361 (3d Cir. 2007).

Having conducted this

review, for the reasons set forth below, we will GRANT this motion to compel, in
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part, and DENY the motion, in part. Specifically, we will direct the disclosure of
only those portions of the interview of E.J. which provide a complete background,
and context on E.J.’s recollection of the specific events that allegedly transpired in
the tent shared by these boys some ten years ago in 2007.
II.

Discussion

Issues relating to the proper scope and nature of discovery rest in the sound
discretion of the court. Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 90 (3d
Cir. 1987). A court’s decisions regarding the conduct of discovery, therefore, will
be disturbed only upon a showing of an abuse of discretion. Marroquin-Manriquez
v. I.N.S., 699 F.2d 129, 134 (3d Cir. 1983). This far-reaching discretion extends to
rulings by United States Magistrate Judges on discovery matters. In this regard:
District courts provide magistrate judges with particularly broad
discretion in resolving discovery disputes. See Farmers & Merchs.
Nat'l Bank v. San Clemente Fin. Group Sec., Inc., 174 F.R.D. 572,
585 (D.N.J.1997). When a magistrate judge's decision involves a
discretionary [discovery] matter . . . , “courts in this district have
determined that the clearly erroneous standard implicitly becomes an
abuse of discretion standard.” Saldi v. Paul Revere Life Ins. Co., 224
F.R.D. 169, 174 (E.D.Pa.2004) (citing Scott Paper Co. v. United
States, 943 F.Supp. 501, 502 (E.D.Pa.1996)). Under that standard, a
magistrate judge's discovery ruling “is entitled to great deference and
is reversible only for abuse of discretion.” Kresefky v. Panasonic
Commc'ns and Sys. Co., 169 F.R.D. 54, 64 (D.N.J.1996); see also
Hasbrouck v. BankAmerica Hous. Servs., 190 F.R.D. 42, 44-45
(N.D.N.Y.1999) (holding that discovery rulings are reviewed under
abuse of discretion standard rather than de novo standard); EEOC v.
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Mr. Gold, Inc., 223 F.R.D. 100, 102 (E.D.N.Y.2004) (holding that a
magistrate judge's resolution of discovery disputes deserves
substantial deference and should be reversed only if there is an abuse
of discretion).
Halsey v. Pfeiffer, No. 09-1138, 2010 WL 3735702, *1 (D.N.J. Sept. 17, 2010).
This discretion extends to resolution of questions regarding the application
of the work product privilege. “The work-product doctrine is embodied within
Rule 26(b)(3) of the Federal Rules of Civil Procedure, which provides that ‘a party
may not discover documents and tangible things that are prepared in anticipation of
litigation or for trial’ unless otherwise discoverable or a party shows substantial
need for the material.

Fed.R.Civ.P. 26(b)(3).

The doctrine is, in essence, a

recognition that a lawyer requires a ‘certain degree of privacy, free from
unnecessary intrusion by opposing parties and their counsel.’ Hickman v. Taylor,
329 U.S. 495, 511, 67 S.Ct. 385, 91 L.Ed. 451 (1947). The doctrine thus is
intended ‘to protect material prepared by an attorney acting for his client in
anticipation of litigation.’ United States v. Rockwell Int'l, 897 F.2d 1255, 1265 (3d
Cir.1990); see also United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 45
L.Ed.2d 141 (1975) (‘At its core, the work-product doctrine shelters the mental
processes of the attorney, providing a privileged area within which he can analyze
and prepare his client's case.’).” Craig v. Rite Aid Corp., No. 4:08-CV-2317, 2012

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WL 426275, at *5–6 (M.D. Pa. Feb. 9, 2012), on reconsideration in part, No. 4:08CV-2317, 2012 WL 1079472 (M.D. Pa. Mar. 30, 2012).
As a general rule, private investigator interviews conducted on behalf of
counsel in preparation of litigation are encompassed by the work product privilege.
Therefore, disclosure of these interviews typically may not be compelled, provided
that the witness is available to be deposed. Dempsey v. Bucknell Univ., 296
F.R.D. 323, 329 (M.D. Pa. 2013).1 The privilege, however, can be waived and the
privilege takes flight when otherwise confidential information is disclosed. The
question before us involves defining the proper scope and dimension of any waiver
which has transpired in this case.
In some instances, parties may waive the privilege by selectively disclosing
portions of privileged materials to some third parties. When this takes place, the
issue then becomes assessing the proper scope of the waiver. In this regard, the

In their response to this motion the plaintiff opposes the request for disclosure of
any further portions of E.J.’s interview by noting, in part, that G.M. was
interviewed by the defense but that no report of that interview has been disclosed
to the plaintiff. This argument confuses the scope of the privilege with the concept
of waiver. We agree that both interviews of E.J. and G.M. would have initially
been cloaked in privilege. Dempsey v. Bucknell Univ., 296 F.R.D. 323, 329 (M.D.
Pa. 2013). The question before us is not one of privilege, but rather entails issues
of waiver of that privilege. In the instant case, there has been a partial waiver of
the privilege as to E.J.’s interview since portions of that interview were disclosed.
The same cannot be said of any interview conducted of G.M. This salient
difference distinguishes these two circumstances.
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1

controlling legal benchmarks were aptly summarized by the United States Court of
Appeals for the Third Circuit in the following terms:
Disclosing a communication to a third party unquestionably waives
the privilege. A harder question is whether the waiver also ends the
privilege as to any related but not disclosed communications. In
answering this question, our touchstone is fairness. See Tackett v.
State Farm Fire & Cas. Ins. Co., 653 A.2d 254, 259 (Del.1995); see
also Westinghouse Elec. Corp. v. Republic of the Philippines, 951
F.2d 1414, 1426 n. 12 (3d Cir.1991). When one party takes advantage
of another by selectively disclosing otherwise privileged
communications, courts broaden the waiver as necessary to eliminate
the advantage. Zirn v. VLI Corp., 621 A.2d 773, 781-82 (Del.1993)
(“The purpose underlying the rule of partial disclosure is one of
fairness to discourage the use of the privilege as a litigation
weapon.”); see also Rice § 9:31. Extending the waiver, however, is
not a punitive measure, so courts do not imply a broader waiver than
necessary to ensure that all parties are treated fairly. See Rice 9:31.
Moreover, when the disclosure does not create an unfair advantage,
courts typically limit the waiver to the communications actually
disclosed. See In re Keeper of Records (Grand Jury Subpoena
Addressed to XYZ Corp.), 348 F.3d 16, 24-25 (1st Cir.2003); cf.
Westinghouse, 951 F.2d at 1427 n. 14.
In re Teleglobe Commc'ns Corp., 493 F.3d 345, 361 (3d Cir. 2007) (footnotes
omitted). Thus, when one party makes a tactical, selective waiver of the privilege
as to a portion of some material it is incumbent upon the court to ensure that the
waiver also encompasses any additional information which needs to be disclosed in
order to avoid any unfair litigative advantage. However, given the importance of
the privilege any expansion of a partial waiver should be limited and carefully
defined and should only encompass that additional information which ought in
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fairness to be disclosed. Therefore, a limited waiver of the privilege by selective
disclosure of some information should not be transformed into a wholesale waiver
by the courts.
This limited waiver analysis is intended solely to avoid permitting a party
from inappropriately using the privilege as both a sword and a shield. In this
setting, as we assess claims of unfairness flowing from a selective waiver of the
privilege, we are mindful that: “Unfairness may occur ‘when a party attempts to
use the communication in a litigation or where the party ‘makes factual assertions,
the truth of which can only be assessed by examination of the privileged
communications.’ Net2Phone, Inc. v. Ebay, Inc., No. CIV. A. 06-2469 KSH, 2008
WL 8183817, at *10 (D.N.J. June 26, 2008) (citing In re Intel Corp.
Microprocessor Litig., 258 F.R.D. 280 (D. Del. 2008)).” Dalmatia Imp. Grp., Inc.
v. FoodMatch, Inc., No. CV 16-2767, 2016 WL 5930900, at *3 (E.D. Pa. Oct. 12,
2016). Under this analysis “ ‘[t]he widely applied standard for determining the
scope of a waiver of . . . privilege is that the waiver applies to all other
communications relating to the same subject matter.’ Ft. James Corp. v. Solo Cup
Co., 412 F.3d 1340, 1349 (Fed.Cir.2005); see also Seagate, 497 F.3d at 1372.”
Brigham & Women's Hosp. Inc. v. Teva Pharm. USA, Inc., 707 F. Supp. 2d 463,
471 (D. Del. 2010).

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Judged by these standards, we note that the selective disclosure of the
investigative interview of E.J., which occurred in the course of G.M.’s deposition
was related to a specific topic: E.J.’s recollection concerning sexual contact and
activity between E.J., N.S., G.M. and R.D. which may have occurred in the tent
shared by these four boys during a camping excursion in 2007. With respect to
this incident the excerpt of the videotaped interview which was played at G.M.’s
deposition, and as to which it is undisputed that any privilege has been waived,
comprised approximately 9 minutes and 38 seconds in duration and related
exclusively to E.J.’s factual narrative of his recollection of the events which
transpired of a sexual nature in this tent in 2007. (In camera submission, Ex. A.)
We have now conducted a comparative analysis of this excerpt with the
entirety of the videotaped interview of E.J., which has been provided to us as
Exhibit B of the plaintiff’s in camera submission. In conducting this analysis we
have focused upon whether there are other communications relating to the same
specific subject matter which ought in fairness to be disclosed given the waiver of
the privilege which has occurred here. While we find that a wholesale disclosure
of the interview in its entirety would be inappropriate, we have concluded that
three additional excerpts from the interview should, in fairness, be disclosed.
These three additional excerpts relate to the specific incident recounted by E.J. in
the portion of the interview which has been disclosed, and in the court’s judgment
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the disclosure of these three additional excerpts is necessary in order to provide a
complete context for E.J.’s recollection of these events, and avoid any incomplete
impressions regarding what E.J. recalls of this particular episode.
The entire videotape interview comprises approximately 1 hour and 58
seconds. The excerpt of the interview which has been previously disclosed by the
plaintiff’s counsel began at approximately minute marker 15 and concluded at
approximately minute marker 26.

In our view, nothing which preceded the

disclosed portion of the interview is so closely associated with the events described
by E.J. that this limited waiver would compel the release of these initial portions of
the videotaped interview. There are, however, three limited excerpts from the
videotaped interview that take place later in the course of the interview which in
our judgment directly relate to the disclosed portion of the interview, contain a
recounting of E.J.’s recollection of this particular event, and would be necessary
for a full, complete and completely fair understanding of this witness’ recollection.
The first of these excerpts immediately follows the disclosed portion of the
interview, which as we previously noted appears to conclude at approximately
minute marker 26 in the interview. Immediately following this disclosed portion
of the interview E.J. recounts additional information directly relating to his
recollection of these events. This discussion is so closely intertwined with the
preceding statements that we conclude that the partial waiver made by the plaintiff
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would embrace this conversation as well. The additional portions of the interview
which directly relate to these matters can be found between minute markers 26 and
34 on the videotape provided to the court.
E.J. and the investigator then return to this specific topic on two more
occasions during the course of the interview. First at approximately minute marker
39 minutes and 20 second, E.J. engages in a brief discussion of his recollection of
these events. That discussion continues for approximately one minute up through
minute marker 40. Finally, at approximately minute marker 55, E.J. and the
investigator return to a conversation concerning the full scope of E.J.’s recollection
of this particular incident. This final conversation continues until approximately
the 60 minute marker in the video.
These limited excerpts relate directly to the subject matter that was disclosed
by plaintiff’s counsel during the deposition of G.M.

These excerpts provide

essential context and additional detail to E.J.’s recollection of this episode, and the
three excerpts, taken together, are inextricably intertwined in a way which leads us
to conclude under Teleglobe and its progeny that the waiver of the privilege which
has occurred here also compels an additional measured disclosure of this
information.
An appropriate order follows:

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III.

Order

For the reasons set forth in the accompanying Memorandum, the defendant’s
motion to compel disclosure of the interview of E.J. (Doc. 70.) is GRANTED, in
part, and DENIED, in part. Specifically, we will direct the disclosure of only those
portions of the interview of E.J. which provide a complete background, and context
on E.J.’s recollection of the events that allegedly transpired in the tent shared by
these boys some ten years ago in 2007, as described in this Memorandum Order;
that is, the excerpts relating specifically to this incident which can be found at
minute markers 26 through 34, 39 through 40, and 55 through 60 of the videotaped
interview. Disclosure should take place on or before April 10, 2017.
So ordered this 30th day of March, 2017.

S/ Martin C. Carlson
MARTIN C. CARLSON
United States Magistrate Judge

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